Bickford v. Aetna Insurance, 101 Me. 124

101 Me. 124 | Me. | 1906

Peabody, J.

This case was an action of assumpsit brought upon an insurance policy to recover for loss of hay, sleighs and carriages by an accidental fire.

The plea is the general issue and the case is before the law court on report by agreement and upon written stipulations of the parties according to which the sole question submitted is “ whether or not the building wholly destroyed which it is admitted contained the carriages and sleighs for which the plaintiff seeks to recover was covered and included by the terms of the description of the policy in question, namely: “ the frame building and addition situated on Depot Street in Gorham, Maine, and occupied as a livery and sale-stable.” If this- building is covered by the terms of the description of the policy the plaintiff is entitled to recover for the loss of his sleighs and carriages the sum of $485, and the sum of $60 which is the admitted damage to the hay. contained in the livery stable, if not he can recover only foy the loss of the hay.

The plaintiff invokes the application of the familiar rule that an insurance contract should be in cases of ambiguity construed most favorably to the insured. Herrman v. Merchants Ins. Co., 81 N. Y. 184; Allen et al. v. St. Louis Ins. Co., 85 N. Y. 473; Rann et al. exrs. v. The Home Ins. Co., 59 N. Y. 387; Hoffman v. Aetna Fire Ins. Co., 32 N. Y. 405; 1 May on Ins., (3rd. Ed.) sec. 175. The plaintiff claims t-hat there are three reasons supporting his contention in the case under consideration: first, that the building which was , wholly destroyed was in connection with the larger building “used as a livery and sale stable,” storing sleighs for sale being a part of the business; second, that it was the “addition” mentioned in the policy; and third, that it was understood by himself and the agent of the company when the first policy and its renewal were issued that the required indemity was in reference to property in this building.

It is necessary to look beyond the policy to ascertain whether in the use made by the plaintiff the building destroyed was a part of his livery and sale stable. It could be so considered only because its second floor was used by him for storing carriages preparatory to painting, and subsequently for permanent storage as a portion of the main stable was used, and its third floor was used by him for storing sleighs kept for sale, and because occasionally sales of carriages and sleighs were made by him in the building. The evidence shows that at the time of the fire, March 27, 1903, the lower floor of the smaller building was used by other parties as a harness shop and paint shop and one of the rooms of the second floor was reserved by the plaintiff for painting carriages and the third floor wholly used by him for storing sleighs and that he occasionally made sales of these carriages and sleighs in the building.

It may be doubted whether the language “ used as livery and sale stable” included with the main building another twenty-six feet distant used in part as a repair shop and in part a paint shop, though also used for the storage of sleighs by the proprietor, and as the place of an occasional sale of his carriages and sleighs.

It is important to examine further the descriptive word “addition” used in the policy to which the occupation of the plaintiff as a livery and sale stable applies as aptly as to the main frame building. The contract of insurance does not cover the buildings themselves but their contents, and so the ownership of the buildings is immaterial except in their identification as those in which the personal property insured is contained. We are to interpret the terms of the contract to determine whether the addition mentioned is “ the building wholly destroyed,” The buildings containing the property insured by the policy in suit are not different from those existing when the original policy was issued. If the word “ addition ” had reference to any existing structure it must be either the building in question or a small building attached to the main building not containing or adapted to contain any of the property insured and which was never used for the purposes of a livery and sale stable. This small annex was of such size, structure and character as to be a component part of the main building and had it contained any of the classes of personal property described in the policy it would have been covered even in the absence of the term “addition.”

The building in question was forty-six feet long by thirty-seven feet wide connected with the main building which was eighty-six and one-half feet long and fifty-four and one-half feet wide by a platform twenty-four feet wide and twenty-six feet by the sides of the buildings. The platform was supported by posts and was reached by a runway nearest the building destroyed. Doors opened into each building both under the platform and from it. It was built at the same time as the buildings, and has since been constantly used in connection therewith. The only way of access to the second and third stories of the building destroyed and to a part of the second story of the main building was from the platform.

The word “addition” must have been a generality or amplified description employed without any definite application or have been intended by the plaintiff and the agent of the underwriters to be within the contract and to mean the building in question, unless its definition and interpretation in the light of surrounding circumstances defeat such intention. The definitions given in dictionaries afford very little assistance in determining its application to a particular structure. The meaning of the term must be extended or limited by reference to other words of description and ' by the use and purpose contemplated by the parties to the contract not inconsistent with the language of the policy, and by judicial definitions given in similar cases. Generally a building entirely distinct from a larger will not be covered by a policy insuring a “building and addition.” In Rickerson v. German-American Ins. Co., 82 N. Y. Supp. 1026, it was held that a policy on “the brick' building and additions” where on the front of the lot was a three story brick building on the east side a two story extension and in the rear a five story brick factory building, and there was a space between the rear wall of the extension and the front wall of the rear building of about seven feet filled in by a small frame structure on which boards were nailed to form the front and roof, did not include the rear building as an addition to the front building. It was held in Peoria Sugar Refining Co. v. People’s Fire Ins. Co., 52 Conn. 581, that within the meaning of an insurance policy giving the insured authority to make additions- a new warehouse located forty feet away from the main building and conneeted with it by a bridge and underground passage used for pipes, is not an addition. In Cargill v. Millers & Manufacturers Mut. Ins. Co., 38 Minn. 90, under a policy insuring a steam power elevator building and addition with porches and platforms attached a warehouse two and one-half feet from the elevator and about the same size, fastened to it with strips of board nailed to each building, used for storing grain received into the elevator was held in effect to be a bin of the elevator building and covered by the policy. In Marsh v. Concord Mut. F. Ins. Co., 71 N. H. 253, a fire policy on a frame íyill building and all additions thereto attached, which building was occupied by the insured as a pail shop, was construed to cover a dry-house twelve feet from the main building between which and the dry-house was a movable bridge, there being no other building beside these except a boiler house two feet from the dry-house. In Home Mut. Ins. Co. v. Rowe, 71 Wis. 33, an insurance policy covered a “ planing-mill building and additions and machinery therein.” The engine room from which the motive power of the mill was furnished was situated twenty-two feet from the mill building, connected therewith by a shaft for the transmission of power, and a spout through which shavings were forced to the engine room. A roadway passed between the buildings. It was held that the word addition covered the engine room and engine. Blake v. Exchange Mut. Ins. Co., 12 Gray, 265; Liebenstein v. The Baltic Fire Ins. Co., 45 Ill. 301; Robinson v. Pennsylvania Ins. Co., 87 Maine, 399.

This question is not free from doubt in the light of the authorities cited, but upon the facts which appear in evidence of the use which the insured made of the building destroyed in connection with his livery and sale stable business, and the fact that no other structure by its location or use can be intended by the terms of the policy, under the rule of construction which in cases of doubt favors the insured, we hold that the building destroyed was the addition designated in the contract.

The evidence shows that at the time the original policy was issued, Col. Millett, the agent of the underwriters, understood that some of the property covered by the policy was in the small building, now claimed to be the addition referred to in the policy though this understanding was not known to his successor, Mr. Carl, nor did he personally know that any of the classes of property specified in the policy was c'ontained in this building. The interpretation of the contract is aided by the intent of the parties and the plaintiff is entitled to the benefit of the understanding when the first policy was issued in construing the new contract under a renewal. Day v. Dwelling House Ins. Co., 81 Maine, 244; Philbrook v. N. E. Fire Ins. Co., 37 Maine, 137. Unless otherwise expressed a renewal will be construed to be subject to the terms and conditions contained in the original policy. Day v. Mut. Ben. L. Ins. Co., 1 MacArthur (D. C.) 41; Hartford F. Ins. Co. v. Walsh, 54 Ill. 164; Withered v. Maine Ins. Co., 49 Maine, 200; Aurora F. & M. Ins. Co. v. Kranich, 36 Mich. 288.

It is claimed by the defendant that the policy in suit could not be understood to cover property in the building consumed, because the rate of insurance on that building established by the New England Insurance Exchange, was higher than upon the main building; but this fact was not known to the insured and could not effect his rights.

Judgment for plaintiff for $545.